24 septembre 2013

This
book aims to resolve the dilemma regarding whether armed intervention
as a response to gross human rights violations is ever legally justified
without Security Council authorisation. Thus far, international lawyers
have been caught between giving a negative answer on the basis of the
UN Charter's rules ('positivists'), and a 'turn to ethics', declaring
intervention legitimate on moral grounds, while eschewing legal analysis
('moralists'). In this volume, a third solution is proposed.

The idea
is presented that many equitable principles may qualify as 'general
principles of law recognised by civilised nations' - one of the three
principal sources of international law (though a category that is often
overlooked) - a conclusion based upon detailed research of both national
legal systems and international law. These principles, having normative
force in international law, are then used to craft an equitable
framework for humanitarian intervention. It is argued that the dynamics
of their operation allow them to interact with the Charter and customary
law in order to fill gaps in the existing legal structure and soften
the rigours of strict law in certain circumstances. It is posited that
many of the moralists' arguments are justified, albeit based upon firm
legal principles rather than ethical theory. The equitable framework
proposed is designed to provide an answer to the question of how
humanitarian intervention may be integrated into the legal realm.
Certainly, this will not mean an end to controversies regarding concrete
cases of humanitarian intervention. However, it will enable the framing
of such controversies in legal terms, rather than as a choice between
the law and morality.

1. The Humanitarian Intervention Discourse: A Debate on the Edges of the Law
2. The Third Source of International Law
3. Equity as ‘General Principles’ in the Legal Systems of ‘Civilised Nations’
4. Equity in International Legal Practice
5. A Framework for Equitable Humanitarian Intervention